Pakistan has Failed to Comply with Counterterrorism Obligations under International Law

JURIST Guest Columnist Dr. Robert P. Barnidge, Jr. of the Jindal Global Law School says that Pakistan has failed to comply with its counterterrorism obligations under international law and that this should be kept in mind when assessing the US' use of force in Pakistan...

Ubi jus ibi officium. This maxim from the Latin, according to which rights involve obligations, is perhaps nowhere more relevant in contemporary international law than when it comes to questions of sovereignty. The privilege that states have to control their internal affairs without external interference is a matter of sovereign right and is reflected in article 2(7) of the UN Charter. This article insulates states from UN intervention in "matters which are essentially within the[ir] domestic jurisdiction," though this does not prejudice the UN Security Council's authority to act under Chapter VII with respect to the maintenance of international peace and security.

But sovereign right is not sacrosanct and can be displaced when a state fails to comply with its obligations under international law. Whether it be transboundary environmental pollution or cybercrime that spans multiple jurisdictions, states have a clear obligation to secure their territory and ensure that it is not used contrary to the rights and obligations of other states. This includes cases in which those other states may be across the world and when it is non-state actors that threaten transboundary harm and when the state itself is unwilling or unable to control these actors.

It is with this understanding of sovereign right and legal obligation that one should approach the US' use of force in Pakistan. Whether it be the May 2011 raid on Osama bin Laden's compound in Abbottabad or its ongoing campaign of drone attacks in Pakistan, the US has been acting against what President Barack Obama identified in his May 2013 address at the National Defense University as "al Qaeda and its associated forces." It is within and through international law, which includes a right of self-defense that article 51 of the Charter recognizes as being "inherent" to states, that the US has made its case and secured the homeland since September 11, 2001.

Pakistan has failed to comply with its counterterrorism obligations under international law. However, to say this, and to then go on to cite specific aspects of international treaty law and customary international law, as well as such legal instruments as Security Council Resolution 1373 (2001) [PDF], is not to flippantly level a charge or assert a claim unsubstantiated by evidence. The general unwillingness and inability of Pakistan to secure its sovereign space has been begrudgingly acknowledged by Pakistanis themselves.

Consider the Abbottabad Commission's Report, which Al Jazeera leaked in July of this year. The government of Pakistan set up this commission of inquiry after the Abbottabad raid in response to a popular backlash against what many Pakistanis considered to be the raid's violation of Pakistani sovereignty. The report is a damning indictment of Pakistan's counterterrorism policy.

With respect to bin Laden's prolonged presence in Abbottabad, the report criticized Pakistan for its "negligence and incompetence and at some undetermined level a grave complicity may or may not have [sic] involved." There was a "collective and sustained dereliction of duty by the political, military and intelligence leadership of the country." According to the report, "the political leadership and the concerned institutions failed to provide any counter terror leadership in general, or to rigorously hunt down OBL and his network in Pakistan in particular." All of this had, unsurprisingly, "spawned further terror instead of containing and eliminating it."

In light of this sobering reality, President Obama's approach to Pakistan seems to have been reasonably sensible, involving, as it has, both "carrots" and "sticks." With respect to the drone campaign in particular, what is perhaps as significant as the technologically sophisticated nature of drones is how the Obama administration has exceeded the requirements of the laws of war in deciding when and how to target members of al Qaeda and its associated forces abroad.

For example, the Presidential Policy Guidance [PDF], which the White House released in May, predicates the lethal targeting of members of al Qaeda and its associated forces abroad to, inter alia, "[n]ear certainty" of no collateral damage and a determination that capture would not be feasible. None of these strictures are required by the laws of war; indeed, they receive little support as legal requirements given the practice of states in wartime.

All of this should be borne in mind when assessing the US' use of force in Pakistan and in those other theaters in which the state at issue has shown itself unwilling or unable to comply with its counterterrorism obligations with respect to al Qaeda and its associated forces that threaten the US with real harm.

This is particularly relevant in light of what is expected to be the imminent release of the findings of UN Special Rapporteur on Counter-Terrorism and Human Rights Ben Emmerson's inquiry into the human rights implications and civilian impact of the US' ongoing drone campaign.

While the standards and procedures that the Presidential Policy Guidance puts forth may or may not always be wise when engaged with on particular facts and circumstances, it seems reasonable not to fault the Obama administration for at least making a good faith effort to comply with the laws of war, if not the Marquess of Queensberry rules.

Dr. Robert P. Barnidge, Jr., is Associate Professor, Assistant Dean (Continuing and Executive Education), and Executive Director, Centre for International Legal Studies, at OP Jindal Global University (India) and a licensed attorney (Missouri). He has a particular interest in the Arab-Israeli conflict, international humanitarian law, the law of state responsibility, and issues related to international law and terrorism.

About Academic Commentary

Academic Commentary is JURIST's platform for legal academics, offering perspectives by law professors on national and international legal developments.
JURIST Forum welcomes submissions (about 1000 words in length - no footnotes, please), inquiries and comments at academiccommentary@jurist.org